The Left the Right and Certainty in Constitutional Law

William & Mary Law Review Volume 33 (1991-1992) Issue Article May 1992 The Left, the Right, and Certainty in Constitutional Law Gene R Nichol Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Constitutional Law Commons, and the Political Science Commons Repository Citation Gene R Nichol, The Left, the Right, and Certainty in Constitutional Law, 33 Wm & Mary L Rev 1181 (1992), https://scholarship.law.wm.edu/wmlr/vol33/iss4/4 Copyright c 1992 by the authors This article is brought to you by the William & Mary Law School Scholarship Repository https://scholarship.law.wm.edu/wmlr THE LEFT, THE RIGHT, AND CERTAINTY IN CONSTITUTIONAL LAW GENE R NICHOL, JR.* I have grave doubts whether legal theorists such as Roberto Unger, Duncan Kennedy, and Mark Tushnet feel significant kinship with conservative constitutional advocates such as William Rehnquist, Robert Bork, and Edwin Meese on many aspects of American social and political life Although the former group may entertain vague dreams of a utopian replacement for our present legal structure, the latter seems to yearn to turn the clock back to clearer, "simpler" times But in at least one area of public discourse-the critique of modern constitutional decisionmaking-our friends on the right and the left seem to have a good deal in common Their clearest area of mutual enthusiasm, without doubt, is the notion that the malleability, pliability, contingency, instability, indeterminacy, and general uncertainty of constitutional decisionmaking render it unacceptable It is hardly the case, of course, that critics of the far right and the far left of constitutional discourse use this "discretion" argument for the same purposes, or that they are motivated by similar political desires Law has always enjoyed an acute kinship with politics Further, it is no secret that both constitutional theory and constitutional adjudication are replete with often barely hidden agendas Still, many of the critics' claims run surprisingly parallel My focus in this Essay is this area of apparent common groundthe indeterminacy objection In my view, the claim that constitutional law is illegitimate, or a mere apology for the status quo, or an unacceptable threat of judicial tyranny, because it is, in a significant way, indeterminate, is itself inconsistent with our constitutional traditions I explore four episodes of our constitutional history to make the case that the American brand of * Dean and Professor of Law, University of Colorado B.A., Oklahoma State University, 1973; J.D., University of Texas School of Law, 1976 A version of this Essay was delivered as the James Gould Cutler Lecture at the Marshall-Wythe School of Law at the College of William and Mary in April, 1991 I would like to thank my colleagues at William and Mary for their comments and support Finally, my colleagues at Colorado, Steve Smith, Rick Collins, and Bob Nagel, offered very helpful suggestions when reviewing the manuscript 1181 1182 WILLIAM AND MARY LAW REVIEW [Vol 33:1181 constitutionalism overtly embraces a good deal more uncertainty, discretion, and change than its critics give it credit for Although I am a far cry from a historian, in my view the attacks lodged by both originalists on the right and critical legal scholars on the left turn out to be profoundly ahistorical For that reason, they miss much of the genius of our constitutional decisionmaking I refer here to "genius" in what I think is its original sense: "peculiar or distinctive character," rather than a different, and perhaps more common use of the word, "extraordinary intellectual power." Very few people have accused our constitutional jurists of displaying "extraordinary intellectual power." Throughout two centuries, however, our constitutional tradition has proven more comfortable with and more embracing of malleability, contradiction, discretion, uncertainty, subjectivity and - not incidentally - optimism about the future, than the critics of either the far right or the far left of American constitutional discourse assume As a result, the indeterminacy critique carries far less power than its advocates assert I THE CRITIQUES It takes no great legal mind, in fact it barely takes consciousness, to make out a claim that constitutional law is indeterminate A fancy theorist may be required to demonstrate that all legal reasoning is unstable-that good lawyers and good judges can make any case or virtually any case come out any way they wish But every first year law student has an exceptionally strong sense that constitutional law is unstable No candid theorist can actually work Brown,' Bakke,2 Bowers,3 Buckley, Bowsher,5 Baker,6 Bethel,7 Brandenburg,8 Broadrick,9 Branzburg,10 and Bivens" into a coherent whole and still say anything meaningful about the controversies presented And that is limiting myself, obviously Brown v Board of Educ., 347 U.S 483 (1954) Regents of Univ of Cal v Bakke, 438 U.S 265 (1978) Bowers v Hardwick, 478 U.S 186 (1986) Buckley v Valeo, 424 U.S (1976) Bowsher v Synar, 478 U.S 714 (1986) Baker v Carr, 369 U.S 186 (1962) Bethel Sch Dist No 403 v Fraser, 478 U.S 675 (1986) Brandenburg v Ohio, 395 U.S 444 (1969) Broadrick v Oklahoma, 413 U.S 601 (1973) 10 Branzburg v Hayes, 408 U.S 665 (1972) 11 Bivens v Six Unknown Named Agents, 403 U.S 388 (1971) 1992] CERTAINTY IN CONSTITUTIONAL LAW 1183 somewhat arbitrarily, to cases that start with a "B." Few constitutional rulings can be justified by unimpeachable reasoning from particularized values that the Framers unambiguously constitutionalized The question for constitutional scholars, therefore, is what one chooses to about that A The Right Critics from the right, unlike their colleagues from the left, present an appealing and forceful attack on much modern constitutional decisionmaking Most frequently they draw upon what has been correctly called a "civics book" understanding of the division of governmental authority in the United States It is the function of the legislature to make policy Courts only implement policies appropriately made by others Judges enforce law; they not make it Added to this fundamental point, of course, is a second and more controversial one The Constitution contains many vaguely worded concepts-due process, equal protection, cruel and unusual punishments, freedom of speech, and freedom of religion Decisions enforcing these provisions, even if seemingly consistent with their language, are legitimate only if they are clearly (that is, with a significant degree of certainty) based upon the Framers' specifically recorded understandings of the constitutional commands If we make something out of the notion of equality that was not contemplated in 1868, we are making policy, not enforcing law As Judge Bork has put it, "once a court abandons the intention of [the Founders], the court is necessarily thrust into a legislative posture."'1 And a judge who looks outside history in this sense "always looks inside himself and nowhere else.' An originalist, Bork has argued, avoids the difficulties of malleability, illegitimacy, and indeterminacy.15 Or as former Attorney General Edwin Meese stated, originalism is essential to "avoid the charge of incoherence."1 The Founders "chose their words 12 See Michael J Perry, Interpretivim, Freedom of Expression, and Equal Protection, 42 OHIO ST L.J 261, 276 (1981) 13 ROBERT H BORK, THE TEMPTING OF AMERICA 81 (1990) 14 Id at 242 15 Id at 257 16 Edwin Meese, Address Before the American Bar Association (July 9, 1985), in THE FEDERALIST SOCIETY, THE GREAT DEBATES: INTERPRETING OUR WRITTEN CONSTITUTION (1986) 1184 WILLIAM AND MARY LAW REVIEW [Vol 33:1181 carefully [and] debated at great length the most minute points."' Therefore, in relatively precise ways, the meaning of the Constitution can be known 18 This rootedness - in fairly clear and particularized historical concepts of equality and liberty-allows people such as Gary McDowell to speak of "fundamental constitutional values"' or a "constitution of fixed principles '20 It also avoids, for Chief Justice Rehnquist, the dangers of a "living Constitution '21 (Though it seems to me that the Chief Justice's Constitution becomes fairly animated from time to time.P) And perhaps more radically, it convinces Professor Lino Graglia that examples of actual unconstitutional practices are "extremely rare."' They can, as he states, "be difficult to find in a standard constitutional law casebook."'' Constitutional law, properly understood, should be a matter of "little controversy or even interest."' B Th Left What about the other side of the spectrum? Critical legal scholars claim, with some influence and even more frequency, that legal arguments are generally indeterminate Skilled practitioners of the legal art can mount equally plausible arguments and counterarguments-sometimes even based on the same value-for the determination of legal disputes Equally troubling, law, like the liberal society it mirrors, is shot through with 17 Id 18 See id at 9-10 19 GARY L McDOWELL, CURBING THE COURTS 50 (1988) 20 Id at 48 21 William H Rehnquist, The Notion of a Living Constitution, 54 TEx L REv 693, 693 (1976) 22 See, e.g., Fullilove v Klutznick, 448 U.S 448, 522-32 (1980) (Stewart & Rehnquist, JJ., dissenting) (arguing that a federal law favoring minority owned business contractors violated the Equal Protection Clause, which requires strict neutrality on the basis of race); Penn Central Transp Co v New York City, 438 U.S 104, 138-53 (1978) (Rehnquist, J., dissenting) (arguing that the designation of Grand Central Station as a historic landmark amounted to a "taking" under the Fifth Amendment because the designation imposed involuntary restrictions for the benefit of the public at a substantial cost to the owner); National League of Cities v Usury, 426 U.S 833, 835-56 (1976) (holding that Congress lacked the authority under the Commerce Clause to extend minimun wage and maximum hour protections to most state employees because of the interference with traditional state governmental functions in the federal system) 23 Lino A Graglia, Constitutional Mysticism: The Aspirational Defense of Judicial Review, 98 HARV L REV 1331, 1344 (1985) (book review) 24 Id at 1344 n.26 25 Id at 1344 1992] CERTAINTY IN CONSTITUTIONAL LAW 1185 contradictions and incoherencies The list includes such notions as liberty versus security, self-determination versus community, economic empowerment versus restraint of the powerful, and even Duncan Kennedy's "fundamental contradiction" -that the "goal of individual freedom is at the same time dependent on and incompatible with the communal coercive action that is necessary to achieve it."26 In this arena, constitutional law is, of course, a sitting duck The Constitution itself obviously embraces notions of liberalism and communitarianism, liberty and constraint, and, for that matter, liberty and equality which, at least at some level, clash or contradict All rights claims, to make it worse, must be weighed against other governmental interests So as Professor Tushnet has argued, "what counts as a right invariably turns out [to be unstable] produc[ing] no determinate consequences." 27 In addition, anyone who has pushed hard at Marbury v Madison's2 premises shares at least some kinship with Tushnet's claim that "[j]udicial review simultaneously creates the potential for the tyranny of judges," leaving us with a "choice of dicta- torships: sometimes the majority will be the dictator, and sometimes the judges will."' The constitutional law "project" for critical scholars, therefore, seeks to show that various forms of arbitrariness, generated by the conflict between the desires for economic growth and for restraint on powerholders in a capitalist society, permeate constitutional law Professor Roberto Unger has pressed the idea further, claiming that constitutional argument and decisionmaking demand a theory of [the] democratic republic that describes the proper relation between state and society Without such a guiding vision, legal reasoning seems condemned to a game of easy analogies It will always be possible to find more or less convincing ways to make a set of distinctions look credible 26 Duncan Kennedy, The Structure ofBlackstone's Commentaries,28 BUFF.L REV.205, 211 (1979) 27 Mark Tushnet, An Essay on Rights, 62 TEX L REV 1363, 1363-64 (1984) Or, to state the argument differently, "[jiudges must choose which conceptions to rely on." MARK V TUSHNET, RED, WHITE AND BLUE: A CRITICAL ANALYSIS OF CONSTITUTIONAL LAW 57 (1988) 28 U.S (1 Cranch) 137 (1803) 29 TUSHNET, supra note 27, at 16 30 ROBERTO M UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT 8-9, 11 (1986) 1186 WILLIAM AND MARY LAW REVIEW [Vol 33:1181 Looking at both of these movements together, one discovers a good deal of shared real estate Both camps build on the lessons of the realists, though the originalists may have less enthusiam for their heritage They demonstrate, with some power, that modern constitutional decisions, including the rulings of the Warren, Burger, and Rehnquist Courts, have employed large doses of judicial discretion The decisions and the rationales they employ are, in general terms, constructed rather than deduced Moving so freely in the realm of choice, at least for those enforcing the Constitution, is illegitimate It presents, as well, the possibility of judicial usurpation Constitutional controversies frequently implicate either contrasting or contradictory values, and no overarching theory demonstrates conclusively which value is to prevail or which institution should be allowed to have its say From this point, of course, our friends part company For those on the right, discretion and policy choice cannot be rendered legitimate Speaking broadly, thirty-five years of "constitutional decisionmaking" have resulted in the imposition of a set of liberal political values on the American populace that could not be sustained (and has, in fact, frequently been rejected) at the ballot box Either small or large segments of existing civil rights law (depending on the critic) should be dismantled For the critical theorists, our contingent, constructed, and contradictory constitutional legacy serves merely to legitimate an otherwise indefensible and oppressive status quo The solution is to abandon the enterprise-to scrap the "rights-talk" 31-in favor, "come the rev- olution," of more authentic, unalienated, and transformative pol32 itics I care less about these proposed solutions than their underlying premise Folded within these critiques is a heavy claim that the discretion, choice, and responsibility presented in constitutional adjudication, and the uncertainty and malleability that necessarily arise from those exercises of choice, remove constitutional decisionmaking from the umbrella of legitimacy in our governmental structure I think that undergirding premise is wrong I turn to several major aspects of our constitutional legacy to try to prove the point 31 Michael J Perry, Taking Neither Rights-Talk nor the "Critique of Rights" Too Seriously, 62 TEx L REV 1405 (1984); Tushnet, supra note 27, at 1386 32 See Peter Gabel & Duncan Kennedy, Roll over Beethoven, 36 STAN L REV (1984); Tushnet, supra note 27, at 1386 1992] CERTAINTY IN CONSTITUTIONAL LAW II 1187 OUR CONSTITUTIONAL LEGACY A Madison In any constitutional history, Madison has to be a major, most likely the major, figure Not surprisingly, given his brilliance and given the fact that he struggled perhaps more than any other American with the problem of what a constitution should say, Madison spoke with some specificity on the issues of certainty, predictability, and uniformity in constitutional interpretation His views on the value of original intention provide a first and easy example of his belief in the malleability of constitutional law Madison, one will recall, refused to allow the timely publication of his notes on the constitutional convention They would, of course, have been very relevant to the constitutional disputes that marked both the Marshall Court and Madison's long public career But Madison thought it preferable, in his words, to wait until the terms of the Constitution were "well settled by practice."u While debating in the Virginia ratification convention, Madison apologized for the fact that he had known some of the specific intentions of the Framers He conceded that this knowledge was a possible source of bias in his attempts to figure out what the Constitution meant.- Why? Because he was aware that "the document must speak for itself, and [that private] intention cannot be substituted for the established rules of interpretation." 37 Those rules of interpretation included the common law notion of "usus,"' ' that is, patterns of "actual government practice and judicial precedents."3 These actions, not the specific goals of the draftsmen, would determine the intention of the Constitution "It could not but happen, " Madison*wrote, "that difficulties and dif- 33 See Adrienne Koch, Introduction to JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787 ix (Ohio Univ Press 1966) 34 Letter from James Madison to Thomas Ritchie (Sept 15, 1821), reprinted in LETTERS AND OTHER WRITINGS OF JAMES MADISON 228 (Philadelphia, J.B Lippincott & Co 1865) [hereinafter MADISON'S LETTERS] 35 See generally H Jefferson Powell, The Original Understanding of Original Intent, 98 HARV L REV 885, 936-37 (1985) 36 Id 37 Letter from James Madison to Martin Van Buren (July 5, 1830), reprinted in MADISON'S LETTERS, supra note 34, at 89 38 Letter from James Madison to John Davis (1832) (never sent), reprinted in MADISON'S LETTERS, supra note 34, at 232, 242 39 Powell, supra note 35, at 939 1188 WILLIAM AND MARY LAW REVIEW [Vol 33:1181 ferences of opinion might arise in expounding terms and phrases necessarily used in such a charter and that it might require a regular course of practice to liquidate and settle the meaning of some of them." 40 The Constitution, for Madison, was a public document, and its interpretation was in the end a public 41 process No better example of this methodology in action can be found than Madison's decision not to veto the Second National Bank Act.42 Twenty years earlier, as a congressman rather than president, Madison had argued that a national bank was unconstitutional When he signed the Bank Act as president, therefore, he was accused of expediency He responded, though, that "the inconsistency is apparent only."' Two decades of contrary practice had rendered his private opinion irrelevant, in favor of what he called "a construction put on the Constitution by the nation, which having made it, had the supreme right to declare its meaning '44 The accepted "use" of the Commerce Clause could not be separated from its proper interpretation Consider the process Madison envisioned The "terms and phrases" of the Constitution are obviously subject to a wide variety of interpretations, at least in some instances When courts, or other government actors for that matter, engage in constitutional interpretation, they will, of necessity, have a variety of options open to them The choices they make and the extent to which the citizenry accepts those choices will fashion, over time, the "correct" interpretation of the charter Its correctness would not be altered by a demonstration that the specific intentions of the Framers were otherwise Apparently, Madison did not find debilitating the fact that skilled lawyers could stand before courts and develop "equally plausible counterarguments," or that the preliminary results were "unstable," or presented the "potential" for judicial tyranny (to quote our friends on the left) There is a reason for that, of course, to which I turn at the conclusion of this Essay Madison was charged with actually doing something When you "have" to something, perfection is set aside pretty quickly Would it be surprising, Madison wrote, "if 40 Letter from James Madison to Spencer Roane (Sept 2, 1819), reprinted in MADISON'S LETTERS, supra note 34, at 143, 145 41 Powell, supra note 35, at 941 42 Act of March 3, 1819, ch 73, Stat 266 43 Letter from James Madison to C.E Hayes (Feb 25, 1831), reprintedin MADISON'S LETTERS, supra note 34, at 164-65 44 Letter from James Madison to the Marquis de Lafayette (Nov., 1826), reprintedin MADISON'S LETTERS, supra note 34, at 538 1992] CERTAINTY IN CONSTITUTIONAL LAW 1189 under the pressure of all these difficulties, the Convention should have been forced into some deviations from the artificial structure and regular symmetry, which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution 45 planned in his closet or in his imagination?" Madison also referred to the "terms and phrase necessarily used '46 in constitutional construction Being quite a linguistics student himself, Madison no doubt employed the term "necessarily used" by design Speaking in The Federalist,he wrote that at least "three sources of vague and incorrect definitions must produce a certain degree of obscurity" in the interpretation 48 of the Constitution 47 First, the "indistinctness of the object[s]" regulated hampers clarity Governmental powers, restraints, and concepts are not exactly "works of nature"- certain in and of themselves, both in terms of their existence and in their susceptibility to scientific description Second, if we can get beyond this problem, consider "the imperfection of the organ of conception,' 49 namely mankind Precise limits between "common law, the statute law, the maritime law, [and] the ecclesiastical law," for example, "remain still to be clearly established in Great Britain, where accuracy in such subjects has been more industriously pursued than in any other part of the world." Not to mention the fundamental differences between the "three great provinces, the Legislative, Executive and Judiciary"-in which a profound "obscurity reigns which puzzle[s] the greatest adepts in political science." 51 Finally, there is, in Madison's view, the "inadequateness of the vehicle of ideas ' 52 Language, or "the medium through which the conceptions of men are conveyed to each other," provides "a fresh embarrassment."' ' All new laws are "indeterminate""though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, [they] are considered as more or less obscure and equivocal, until their meaning [is] 45 THE FEDERALIST No 37, at 238 (James Madison) (Jacob E Cooke ed., 1961) 46 Letter from James Madison to Spencer Roane (Sept 2, 1819), reprinted in MADISON'S LETTERS, supra note 34, at 143, 145 (emphasis added) 47 48 49 50 51 52 53 THE FEDERALIST IdId Id Id Id Id at 236 at 235 at 237 at 236 No 37, supra note 45, at 237 (emphasis added) 1190 WILLIAM AND MARY LAW REVIEW [Vol 33:1181 liquidated and ascertained by a series of particular discussions 54 and adjudications." These are not the words of a theorist who thinks that constitutional decisionmaking can be performed by rote Nor are they the ideas of one who thinks that nonmechanical judicial interpretation is, by definition, a usurpation of power Madison brings to mind, instead, Alexander Bickel's dictum that "[e]ven when law pretends to be a science, it is not, after all, mathematics." 55 He accepted play in the joints of constitutional interpretation because, in short, he saw no other option, or at least no other viable one The critique from the right-that all interpretive moves beyond the specific intentions of the Founders are illegitimate-Madison rejected explicitly In my view, Madison would have repudiated much of the critique from the left as well, but here perhaps with what lawyers used to call a general demurrer There is contradiction, there is discretion, there is choice, and there is even the potential for tyranny How could it be otherwise? But what system could be proposed to operate more beneficially? B The Ambitious Role of the Early American Lawyer This section broadens the focus of the Essay from one Framer, even if he is the most important one, to a wider sense of the lives and values of early American statesmen I have in mind particularly one subset of the first few generations of American political decisionmakers -lawyers and judges From time to time, I hear complaints about the pervasive influence of lawyers Lawyers, the rumors go, not only run the judiciary, but also the legislature, the executive branch, political parties, and everything else associated with power In my view, there is not that much truth in the broad claim I know that our legislature in Colorado is not dominated by lawyers, in fact they are few and far between The same is true, I seem to recall, in Virginia I at least know that when I am in Denver lobbying for more money for the law school, I wish that there were a lot more lawyers to talk to Apparently normal people not think a strong case arises for significant public sacrifice in order to produce more lawyers But things were different in this country during the period from the Revolution to the Civil War Twenty-five of the fifty- 54 Id 55 ALEXANDER M BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS 97 (1978) 1992] CERTAINTY IN CONSTITUTIONAL LAW 1191 six signers of the Declaration of Independence, for example, were lawyers Thirty-one of the fifty-five members of the constitutional convention were members of the legal profession Perhaps most surprising to us, thirteen of the first sixteen American presidents were lawyers That is an amazing statistic, of course I somehow doubt that today a lawyer could be elected president of the United States These figures, however, illustrate a point made in a great book written by Robert Ferguson, Law and Letters in American Culture.6 In Ferguson's view, lawyers "completely '57 dominate[d] American politics until the Civil War So what? Ferguson also demonstrates convincingly that early American lawyers and judges shared a much different view of the roles of law and the legal profession than those that prevail today That view, which I will describe, has fallen into desuetude Still, it sits uneasily with a claim that the art of judging, particularly constitutional judging, which so directly implicates our efforts at societal self-definition, is a mechanical enterprise that must be clearly rooted in what has been decreed before Early American lawyers used a different vocabulary than we do, one of natural law and God-given justice They also saw themselves as engaged in a different enterprise than the one we typically espouse-they were "discovering" the "natural" order of social and political relations But the "project" they envisioned was clearly an all-encompassing one in which the legal profession played a crucial, creative, and initiating role It, like Madison's view of the rigors of constitutional interpretation, is a central feature of our constitutional tradition It cannot be squared with the claim that uncertainty and discretion render the judicial enforcement of constitutional norms illegitimate Let me give a few examples Listen to the way colonial Americans described the education necessary for lawyering In a 1794 lecture given at Columbia University, Chancellor James Kent demanded that aspiring lawyers "master the Greek and Latin classics as well as moral philosophy, history, logic, and mathematics" because only by being "'well read in the whole circle of the arts and sciences'" could they form "'an accurate acquaintance with the general principles of Universal Law.' " 56 ROBERT FERGUSON, LAW AND LETTERS iN AMERICAN CULTURE (1984) 57 Id at 17 58 Id at 28 (quoting James Kent, An Introductory Lecture to a Course of Law Lectures (delivered Nov 17, 1794), reprintedin COLUm L REV 330-43 (1903)) 1192 WILLIAM AND MARY LAW REVIEW [Vol 33:1181 Joseph Story claimed that the democratic lawyer must constantly "'drink in the lessons and the spirit of philosophy.' ",9 Rufus Choate preached that a would-be practitioner must "[s]oak [his] mind with Cicero," 60 because literature and politics were inevitably merged in the lawyer's general call to "civitas," or the obligation to serve the higher sense of civic and public purpose61 Key constitutional Framer James Wilson claimed that the true lawyer possessed a "'philosophy of the human mind' that allowed him to 'become well acquainted with the whole moral world' and to 'discover the abstract reason of all laws.' "62 Jefferson, whom we forget was generally understood in his day as the country's greatest legal scholar, wrote that "'history, politics, ethics, physics, oratory, poetry, [and] criticism [are] necessary to [become] an accomplished lawyer.' " Of course, Jefferson also prescribed a plan of law study that included, each day, intensive study of three languages from eight o'clock to noon, politics and history in the afternoon, and poetry, criticism, rhetoric and oratory from "'Dark to Bed-time.'"64 That, you will notice, included no time for nightly visits to the taverns of Williamsburg Jefferson, of course, studied law for five years But there were also a great many Patrick Henrys in colonial America- "Blackstone" lawyers briefly trained in a law office, who practiced from three "legal sources": Blackstone, Shakespeare, and the Bible Lincoln was the last Blackstone lawyer to be president of the United States-we have never done so well, before or since Still, these practices were outside what has been called the "controlling aspirations of [the American] intellectual elite." Even here, the point is the same for my purposes Early American lawyers and 59 Id at 66 (quoting Joseph Story, A Discourse Pronounced at the Inaugurationof the Author as Dane Professor of Law in Harvard University, August 25, 1829, in THE MISCELLANEOUS WRITINGS OF JOSEPH STORY 528-29 (William Wetmore Story ed., Boston, Little, Brown 1852)) 60 Id at 75 (quoting Rufus Choate, quoted in CLAUDE M FUESS, RUFUS CHOATE: THE WIZARD OF THE LAW 222 (1928)) 61 Id at 72-78 62 Id at 60 (quoting James Wilson, Lectures on Law Delivered in the College of Philadelphiain the Years 1790 and 1791, in THE WORKS OF JAMES WILSON 90-91 (Robert Green McCloskey ed., 1967) [hereinafter WORKS OF WILSON]) 63 Id at 28 (quoting letter from Thomas Jefferson to Daloney Terrell (Feb 26, 1821), in 15 THE WRITINGS OF THOMAS JEFFERSON 318-23 (Andrew A Lipscomb & Albert E Bergh eds., 1905)) 64 Id (quoting Thomas Jefferson, quoted in 11 THE WORKS OF THOMAS JEFFERSON 420- 26 (Paul Leicester Ford ed., 1905)) 65 Id at 29 19921 CERTAINTY IN CONSTITUTIONAL LAW 1193 judges-unlike their modern day counterparts-were schooled in, and employed in their practices, general knowledge "Technical" legal competence paled in importance compared to skills of oratory, eloquence, philosophy, politics, religion, and literature Indeed, as Ferguson has written, "[o]ne can hardly exaggerate 66 the importance of general learning in early American law." There was "a remarkable symbiosis between law and literary aspiration."67 This meant, as Chancellor Kent argued, that lawyers were seen as "'ex officio natural guardians of the laws,' and 'sentinels over the constitutions and liberties of the country.' "6 In John Adams's view, it was the responsibility of lawyers to "proclaim 'the laws, the rights, [and] the generous plan of power' delivered down from remote antiquity."6 James Wilson, one of the Constitution's principal draftsmen, wrote that the true lawyer "ranged not without rule, but without restraint, in the rich, the variegated and the spacious fields of science!' "70 This vision of law at least partially explains to students of constitutional history some surprising phenomena: the fact, for example, that Justice Joseph Story (perhaps our preeminent judicial constitutional theorist) would describe the goal of judicial reasoning as the realization of "'the splendid visions of Cicero, dreaming over the majestic fragments of his perfect republic.' "171 Or that John Marshall's greatest constitutional opinions failed to cite a single case As Ferguson has written, "[e]ach argument was grounded instead upon appeals to the principiaof American '72 civilization and upon the grand, inclusive style [of] Blackstone Early Americans were obsessed with self-definition, and the development of judicial review went a long way towards establishing a lawyer's hegemony over the description of republican ideals 66 Id at 66 67 Id at 25 68 Id (quoting James Kent, Address Delivered Before the Law Association of New York City (Oct 21, 1836), in MEMOIRS AND LETTERS OF CHANCELLOR JAMES KENT 235-36 (William Kent ed., Boston, Little, Brown 1898)) 69 Id at 18 (quoting John Adams, A DISSERTATION ON THE CANON AND FEUDAL LAW (1765), reprintedin THE LIFE AND WORKS OF JOHN ADAMS 445-64 (Charles Francis Adams ed., Boston, Little, Brown 1850-56)) 70 Id at 65 (quoting WORKS OF WILSON, supra note 62, at 69-70) 71 Id (quoting Joseph Story, Progress of Jurisprudence,An Address Delivered before the Members of the Suffolk Bar, at Their Anniversary, September 4, 1821, at Boston, in THE MISCELLANEOUS WRITINGS OF JOSEPH STORY, supra note 59, at 215) 72 I& at 23 1194 WILLIAM AND MARY LAW REVIEW [Vol 33:1181 This concept of the law and lawyering, quite obviously, has not survived Jacksonian democracy questioned the legitimacy of such an ex officio 'lite Emerson, Thoreau, and Whitman launched a cultural assault on the notion of civic republicanism For Thoreau, the virtue of lawyers was "'the virtue of pigs in a litter, which lie close together to keep each other warm.' " Around the same time, Emerson claimed that "the world is nothing, the man is hand, wrote "I give you myself, all ' 74 Whitman, on the other 75 before preaching or law." By the 1840's, oratory came to play a less significant role in the courtroom Jurisprudence became more technical and positive John Marshall, Joseph Story, Daniel Webster, and James Kent died despairing over the fate of their country By the end of the nineteenth century, Oliver Wendell Holmes would deride what he called "'Story's simple philosophizing.' "76 He refered to lawyers as that "'little army of specialists' and declared war on his predecessors, writing: "For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether," so that we could "convey legal ideas uncolored by anything outside the law '78 The idea of stripping legal norms of everything outside the law would be heartening to critical scholars of both the right and the left It would not, however, have been even comprehensible, much less desirable, to an early American lawyer That is exactly the point The founding generation had an antiquated vision of the force, character, and process of law I not suppose that we would want to recapture that Still, the notion that judges can act appropriately only when their decisions are based clearly upon unambiguous dictates of positive and specific legal commands was as far outside the range of experience of early American lawyers as their natural law aspirations are to us Jurisprudence was an all-encompassing science which ",77 73 Id at 239 (quoting Henry David Thoreau) 74 Or, to put it another way, "in yourself is the law of all nature." Ralph Waldo Emerson, The American Scholar, reprinted in THE WORKS OF RALPH WALDO EMERSON 112-13 (Edward W Emerson ed., 1883) 75 WALT WHITMAN, Song of the Open Road, in THE LEAVES OF GRASS 158 (1900) 76 FERGUSON, suepra note 56, at 288 (quoting Oliver Wendell Holmes, The Use of Law Schools: Oration Before the Harvard Law School Association at Cambridge, November 5, 1886, on the 250th Anniversary of Harvard University, in THE OCCASIONAL SPEECHES OF JUSTICE OLIVER WENDELL HOLMES 40-41 (Mark DeWolfe Howe ed., 1962)) 77 Id at 290 (quoting Holmes, supra note 76, at 36) 78 Id (quoting Oliver Wendell Holmes, The Path of the Law, 10 HARv L REV 457, 464 (1897)) 1992] CERTAINTY IN CONSTITUTIONAL LAW 1195 sought to bring human relations in line with the commands of a sophisticated and still-unfolding moral universe There was, I suggest, no single, well-marked, and closely channelled road to the achievement of Cicero's republic But that did not make constitutional law illegitimate.C The Fourteenth Amendment My last two ventures into constitutional history will be more brief and more pointed Both involve the Civil War and its amendments; and, if anything, they present interpretive issues that are even more pervasive than Madison's thought or the ethos of colonial lawyers The first discussion concerns the history of the Fourteenth Amendment itself The Due Process and Equal Protection Clauses of the Fourteenth Amendment make up the heart of modern constitutional law Fourteenth Amendment rulings such as Brown v Board of Education79 Roe v Wade,80 and Frontierov Richardson81 have spawned a significant industry of constitutional theorizing Debate over the way the Fourteenth Amendment should be interpreted is, to a significant extent, the debate of modern constitutional law Some advocate a tight interpretive stance, allegedly based on intention Others seek the vigorous use of the "majestic generalities of the Amendment in order to improve our social order But what was the purpose of the Amendment? Professor William Nelson has written an excellent book addressing that question The best answer appears to be that the Framers of the Fourteenth Amendment, when compared to our uses of the provision, were speaking to a different sort of audience, using different sorts of concepts, for different purposes, and with contradictory rationales The likely case is that first and foremost the reconstruction Congress was seeking to codify, in dramatic terms, its victory over the South By guaranteeing federal privileges and immunities, due process, and equal protection, the Framers could say, most effectively, that the regime of the pre-war South could 79 347 U.S 483 (1954) 80 410 U.S 113 (1973) 81 411 U.S 677 (1973) 82 William J Brennan, Speech to Text and Teaching Symposium, Georgetown University (Oct 12, 1985), reprintedin THE FEDERALIST SOCIETY, supra note 16, at 11 (1986) 83 WILLIAM E NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988) 1196 WILLIAM AND MARY LAW REVIEW [Vol 33:1181 not constitutionally be resurrected Beyond that, in Nelson's view, they were largely uninterested in issues of bureaucratic enforcement of the Amendment's commands Those are our concerns, not theirs They wrote "to reaffirm the lay public's longstanding rhetorical commitment to general principles of equality, individual rights and local self-rule." Of course, to our present sensibilities, these three conceptsequality, individual rights, and local control-are not only vague and amorphous, but in many instances they are contradictory But the Framers of the Amendment, for several reasons, were not inclined to clear up these potential conflicts First, it was less clear to them than it is to us that the principles would actually collide One needs a stronger sense of the actual operations of an equality concept, for example, to understand what other concerns it might subsume Second, they were not speaking to philosophers and legal theorists They were not theorists themselves The language of Section One5 was designed for persuasion, not intellectual coherence 86 Most fundamentally, the Amendment was seen as a rhetorical commitment, charging the nation to its duty concerning the newly freed slaves and loyal unionists Third, real and unreconciled disagreement about the nature of the equality demanded by the provision persisted The ambiguity and the capaciousness of the Amendment's terms allowed the Framers to retain the support of political coalitions that concurred only in vague ideas, not specific programs.8 To give examples of this amorphous process is easy Mixing notions of liberty and equality, Justice Chase declared that the most fundamental of natural rights was the power to exercise the same rights as others.8 Congressman Bingham, a drafter of the Amendment, constantly referred to the equality of natural rights.8 The higher law/natural rights basis of the provision also, ironically by our lights, included concepts of duty: God required 84 Id at 85 All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws U.S CONST amend XIV, S 86 Cf.NELSON, supra note 83, at 60-63 87 See id 88 Id- at 22 89 Id at 73 1992] CERTAINTY IN CONSTITUTIONAL LAW 1197 that people behave in various ways 90 Some supporters indicated that equality meant an equal place in terms of "intelligence and virtue." 91 Others claimed that, at most, the phrase recognized an equal need for physical protection by the government 92 The suffrage issue was a particularly warm potato For example, the Ohio Republican Party in 1866 openly advocated black suffrage 93 in some counties, and in some opposed it National leaders decided not to settle the question because most would assume that "their" Amendment was the one that had passed Charles Sumner wrote that Section One was "like a sign on the highway with different inscriptions on each side, so that people approaching the sign from the opposite directions necessarily see it dif94 ferently." What, then, are the demands of certainty in interpreting such a provision? Originalists apparently would allow only the ideas on which all or virtually all Framers agreed But this lowest common denominator approach codifies a supposed compromise that did not in fact exist; or, more accurately, it is not a compromise at all Why should it be the case that the least ambitious interpreters, in every instance, win the day? Critics on the left must assume, in turn, that any constitutional provision that is subject to such varying interpretations cannot actually be deemed law; it is too malleable, uncertain, indeterminate, subject to manipulation But can you imagine any conclusion more at odds with the perceptions of the American populace? When we enact a constitutional amendment, whatever else we may have in mind, we all think we are doing something that will have an impact in the real world D Lincoln and Aspiration The final historical foray this Essay addresses is, in my view, the most important one If we back up a few years to the period just before the Civil War, Lincoln's vision of the Constitution moves to center stage What a telling vision it is Recall that one of the central questions addressed in the Lincoln-Douglas debates in 1858 was the meaning of the Declaration of Independ- 90 91 92 93 94 Id at 23 rd at 87 Id at 88-89 Id at 143 Id 1198 WILLIAM AND MARY LAW REVIEW [Vol 33:1181 ence and, less directly, the way that the Declaration's goals should affect the meaning of the Constitution itself Responding to Judge Douglas's claims for "popular sovereignty" and support for the Dred Scott decision, 95 Lincoln demanded that we "readopt the Declaration of Independence, and with it the practices and polic[ies] which harmonize with it."96 In Lincoln's view, our constitutive principles were more basic and more profound than the specifics set forth in the constitutional text Framing an illustration based upon Biblical metaphor, he explained: There is something back of [the Constitution and the Union] entwining itself more closely about the human heart That something, is the principle of "Liberty to all"-the principle that clears the path for all-gives hope to all-and enter- prize and industry to all The expression of that principle, in our Declaration of Independence was the word "fitlyspoken" which has proved an "apple of gold" The Union and the Constitution, are the picture of silver, subsequently framed around it The picture was made for the apple-not the apple for the picture So let us act, that neither picture, or apple shall ever be blurred or bruised or broken.97 Of course, drawing this link back to the fountainhead of the Constitution -the Declaration-was not the end of Lincoln's so- journ He realized the seeming inconsistencies of the Declaration As Martin Luther King, Jr reminded a century later: "that document was always a declaration of intent rather than of reality." 98 Slavery was only the grossest of the realities that haunted it The "all" who were created equal were, at best, white, propertied, protestant males Lincoln argued, though, that the Framers of the Declaration did not mean to assert the obvious untruth, that all were then actually enjoying equality, nor yet, that they were about 95 Scott v Sandford, 60 U.S (19 How.) 393 (1856) 96 Abraham Lincoln, Speech at Peoria, Illinois, in Reply to Senator Douglas (Oct 16, 1859), reprintedin SELECTED WRITINGS AND SPEECHES OF ABRAHAM LINCOLN 44 (T Harry Williams ed., 1943) 97 Abraham Lincoln, Fragment on the Constitution and the Union (Jan 1861), reprinted in THE COLLECTED WORKS OF ABRAHAM LINCOLN 169 (Roy Basler ed., 1953) 98 Martin Luther King, Jr., WORDS OF MARTIN LUTHER KING 52 (Coretta S King ed., 1983) 1992] CERTAINTY IN CONSTITUTIONAL LAW 1199 to confer it immediately upon them They meant simply to declare the right, so that enforcement of it might follow as fast as circumstances should permit They meant to set up a standard maxim for free society, which could be familiar to all and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence.99 The problem with the Dred Scott decision, then, was not just that it sought to bind the nation to a particular course in dealing with its most devastating problem Dred Scott itself, in Gary Jacobsohn's words, "failed to acknowledge the moral dimensions of American constitutionaism."'010 In Lincoln's view, it failed to reflect the "national striving to fulfill the substantive ideals of the Constitution and the Declaration of Independence."'' That aspiration was the "leading object"'0 of the government for which the Civil War itself was fought But how can the aspirations of American constitutionalism be squared with the certainty critiques of the left and right? Our vision of "liberty," in Lincoln's words, will be "constantly looked to, constantly labored for, constantly approximated though never perfectly attained."'0 Its "approximation" is, by definition, an imperfect process, one that moves with the developments of our culture, allowing "enforcement as fast as circumstances should permit."'1 It assumes, even, "partial and temporary departures, from necessity."'1 It will not be pristine and neatly consistent and representative of the latest trends of political philosophy It is, after all, the movement of a nation and a culture, like law itself 99 Abraham Lincoln, The Dred Scott Decision, Speech at Springfield, Illinois (June 26, 1857), reprinted in ABRAHAM LINCOLN: HIS SPEECHES AND WRITINGS 361 (Roy Basler ed., 1946) 100 GARY JACOBSOHN, THE SUPREME COURT AND THE DECLINE OF CONSTITUTIONAL ASPIRATION (1986) in 101 Id at 95 102 Abraham Lincoln, Message to Congress in Special Session (July 4, 1861), rep7inted SELECTED WRITINGS AND SPEECHES OF ABRAHAM LINCOLN, supra note 96, at 125, 139 103 Letter from Abraham Lincoln to H.L Pierie and others (Apr 6, 1859), in ABRAHAM LINCOLN: HIS SPEECHES AND WRITINGS, supra note 99, at 361 104 Id 105 Lincoln, supra note 102, at 140 1200 WILLIAM AND MARY LAW REVIEW III [Vol 33:1181 CHOICE I have tried to show, in general terms, that the indeterminacy critique-the demand for certainty-sells short our constitutional tradition At best the critiques are partial, for the need to make choices will always be with us, and the need to explain why certain choices are preferable to others cannot be successfully, or courageously, put aside In the broadest sense, Holmes was right when he wrote that in law "certainty generally is illusion and repose is not the destiny of man."'06 The straight fact is that constitutional decisionmaking, like all legal decisionmaking, is value-laden As Charles Black has written, "to ask that constitutional law be free from value judgments thus implicated is to ask that it not be law.' 10 And the general principles that make up the central features of our Constitution, as Madison acknowledged, produce uncertainty in law, not certainty The "whole subject-matter of jurisprudence," as Justice Cardozo concluded, is "more plastic, more malleable, the moulds less definitively cast than most of us have been accustomed to believe.' l To say that the judicial enforcement of sometimes ambiguous constitutional provisions is illegitimate is to argue for a different historical course than we have taken And we have been wise, at least on this optimistic front, in the choice that we have made This is, of course, part of a broader point Holmes complained about scholarly theorists saying that "the academic life is but half-life, utter[ing] smart things that cost you nothing from a cloister."'0 We not have to intentionally beat up on theorists to openly recognize that most of law, like most of life, is choice As Holmes also reminded, "life is an art not a thing which one can work out successfully by abstract rules.""' Madison, Jefferson, Marshall, Story, Lincoln, Brandeis, and Warren knew that They also knew, as Adlai Stevenson wrote, that "to act with enthusiam and faith is the condition of acting greatly.' We should remember that lesson ourselves 106 Holmes, supra note 78, at 466 107 CHARLES BLACK, DECISION ACCORDING TO LAW 80 (1981) 108 BENJAMIN CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 161 (1949) 109 Letter from Oliver Wendell Holmes to Felix Frankfurter (July 15, 1913), microformed on OLIVER WENDELL HOLMES JR PAPERS (University Publications of America) 110 Letter from Oliver Wendell Holmes to Lady Castletown (June 18, 1897), quoted in SHELDON NOVICK, HONORABLE JUSTICE: THE LIFE OF OLIVER WENDELL HOLMES 217 (1989); see also CARDOZO, supra note 108, at 166 ("I have become reconciled to the uncertainty, because I have grown to see it as inevitable.") 111 PORTER MCKEEVER, ADLAI STEVENSON: His LIFE AND LEGACY 257 (1989)  ... Id (quoting Oliver Wendell Holmes, The Path of the Law, 10 HARv L REV 457, 464 (1897)) 1992] CERTAINTY IN CONSTITUTIONAL LAW 1195 sought to bring human relations in line with the commands of... back to the fountainhead of the Constitution -the Declaration-was not the end of Lincoln's so- journ He realized the seeming inconsistencies of the Declaration As Martin Luther King, Jr reminded... play in the joints of constitutional interpretation because, in short, he saw no other option, or at least no other viable one The critique from the right- that all interpretive moves beyond the